Government may substantially burden a person's exercise of religion only if it demonstrates that application of the burden to the person --

(1) is in furtherance of a compelling governmental interest; and

(2) is the least restrictive means of furthering that compelling governmental interest.

42 U.S.C. § 2000bb-1(b). Under RFRA, a plaintiff must first establish that the government has substantially burdened the free exercise of religion; if the plaintiff satisfies this threshold, the government must establish that its conduct is the least restrictive means of serving a compelling governmental interest. In this court's June 30 memorandum, I concluded that genuine issues of material fact remained as to both plaintiff's and defendants' burdens under RFRA. Specifically, the issues that remain for trial are whether the plaintiff is motivated by a sincerely held religious belief and whether the no-hats rule is the least restrictive means of furthering the government's compelling interest in prison safety.

Defendants have asked the court to reconsider the denial of summary judgment. Defendants make three arguments: that RFRA does not apply to this case; that, even if RFRA does apply, the court misapplied it; and that the defendants are entitled to qualified immunity. I will address these arguments in turn.

I. Whether RFRA Applies

Defendants argue that RFRA should not apply in this case because the plaintiff did not frame his complaint or his response to the summary judgment motion in terms of RFRA. In support of this argument, defendants cite Brown-El v. Harris, 26 F.3d 68 (8th Cir. 1994). In that case, the Eighth Circuit apparently concluded that the pre-RFRA standard should govern. The court stated:

We recognize that Congress, in passing the Religious Freedom Restoration Act of 1993 has created a new standard of review for claims that governmental action restricts the free exercise of religion. Although the Act applies retroactively, we need not consider the new standard because Brown-El failed to raise or otherwise bring his claim under the Act, and in any event, we conclude the [defendant's] policy does not restrict Brown-El's religious freedom in the first place.

I note, however, that defendants apparently misunderstand what I have held to be the plaintiff's burden under RFRA. Defendants argue that there is no substantial burden on plaintiff's free exercise because "other provisions were made for the practice of plaintiff's religion." Defendants' Memorandum at 5. This presumably is a reference to the assertions elaborated in the defendants' pretrial memorandum that the prison provides Muslim inmates the opportunity to attend religious ceremonies and prayer meetings, that the prison contracts with an imam to lead these ceremonies, and that the prison provides meals that satisfy Islamic dietary restrictions, including special meal schedules during the festival of Ramadan. Defendants' Pretrial Memorandum at 3. Under the defendant's reasoning, a burden on free exercise would not be substantial unless it interfered with a person's ability to practice religion generally. The term "free exercise of religion," however, refers to particular practices of religion, not the practice of religion in general. Just as the government cannot justify restricting some forms of speech merely by pointing to other opportunities a person has to speak, so the government cannot limit particular exercises of religion by pointing to other religious practices that remain available. It would be curious to find that RFRA barred challenges to governmental restrictions on religion as long as the plaintiff could practice, say, two-thirds of his religion.

Supreme Court cases prior to Smith -- cases applying the strict scrutiny test restored by RFRA -- analyzed specific religious practices burdened by governmental action and found no occasion to inquire whether, putting the burdened practice to one side, the complainant was otherwise unimpeded in the practice of his or her religion. Thus, in Sherbert v. Verner, 374 U.S. 398, 10 L. Ed. 2d 965, 83 S. Ct. 1790 (1963), the Court declared unconstitutional state regulations which forced the appellant to choose between observing the Sabbath and receiving unemployment benefits. The Court did not ask whether, despite the restriction on Sabbath observation, the appellant could nonetheless practice other aspects of her religion. Similarly, in Wisconsin v. Yoder, 406 U.S. 205, 32 L. Ed. 2d 15, 92 S. Ct. 1526 (1972), in which the Court ruled that Amish parents did not need to follow Wisconsin's compulsory secondary education law, the Court did not ask whether the state allowed the Amish to practice their religion generally, the particular restriction at issue notwithstanding. RFRA specifically instructs courts to look to Sherbert and Yoder for guidance. See 42 U.S.C. § 2000bb(b)(1). Consequently, the government cannot defend its decision to prevent the plaintiff from wearing a kufi by pointing to other Islamic practices available to him.

This interpretation of RFRA's text comports with RFRA's legislative history, which specifically rejects limiting its application to practices mandated by religion. Representative Stephen Solarz, the original sponsor of RFRA, stated:

Were Congress to go beyond the phrasing chosen by the drafters of the First Amendment by specifically confining the scope of this legislation to those practices compelled or proscribed by a sincerely held religious belief in all circumstances, we would run the risk of excluding practices which are generally believed to be exercises of religion worthy of protection. For example, many religions do not require their adherents to pray at specific times of day, yet most members of Congress would consider prayer to be an unmistakable exercise of religion.

To say that the "exercise of religion" might include acts not necessarily compelled by a sincerely held religious belief is not to say that any act merely consistent with, or not proscribed by one's religion would be an exercise of religion. As I pointed out in my testimony, it would not be reasonable to argue, for example, that a person whose religion did not proscribe the possession of a machine gun had a free exercise right to own one notwithstanding applicable federal laws.

Hearings on H.R. 2797 Before the House Judiciary Comm., 102d Cong., 2d Sess. 128-30 (May 13, 1992). Representative Solarz quoted a letter written by Professors Michael McConnell, Douglas Laycock, and Edward McGlynn Gaffney to further explain why he chose not to limit RFRA to practices compelled by religion:

It is difficult to capture the idea of the dictates of conscience in statutory language because different theological traditions conceptualize the force of [God's] moral order in different ways. Some treat it as a binding moral law; others view it as an expression of [God's] will, which believers freely conform to out of love and devotion to [God]. . . . it would be a mistake to tighten the language of the Act by confining it to conduct "compelled by" religious belief.

139 Cong. Rec. S14352 (daily ed. Oct. 26, 1993). Similarly, Senator Kennedy described the amendment's purpose as a clarification that RFRA did not require a compelling justification for governmental conduct that has an "incidental effect" on religious practices. Id. Nowhere was it suggested that the introduction of the word "substantially" was intended to limit RFRA to religiously-compelled practices. Rather, the sponsors of the floor amendment explained that limiting RFRA's application to substantial burdens was intended to excuse the government from justifying conduct that did not significantly burden covered practices. Thus, the government does not need to justify conduct that merely makes a particular religious practice inconvenient. Only when the inconvenience reaches the level of a "substantial burden" must the government satisfy the compelling interest/least restrictive means test imposed by RFRA.

Supreme Court case law before Smith, to which RFRA specifically directs courts to look for guidance, 42 U.S.C. § 2000bb(a)(5), did not present a single formulation as to the types of practices covered by the Free Exercise Clause. Some cases characterize the religious practice at issue as mandated by religious beliefs. See Goldman v. Weinberger, 475 U.S. 503, 510, 89 L. Ed. 2d 478, 106 S. Ct. 1310 (1986) (describing the wearing of a yarmulke by a rabbi as a practice "required by his religious beliefs"); United States v. Lee, 455 U.S. 252, 257, 71 L. Ed. 2d 127, 102 S. Ct. 1051ss (1981) (characterizing participation in the social security system as "forbidden by the Amish faith"); Yoder, 406 U.S. at 215 (describing the desire to live apart from the general population as a "command . . . fundamental to the Amish faith" and further stating that free exercise claims must be "rooted in religious beliefs"). Other cases do not describe the practice at issue as religiously compelled. See Frazee v. Illinois Department of Employment Security, 489 U.S. 829, 834, 103 L. Ed. 2d 914, 109 S. Ct. 1514 (1989) (describing observance of Sabbath as "based on sincerely held religious beliefs"); Lyng v. Northwest Indian Cemetery Protection Association, 485 U.S. 439, 451, 99 L. Ed. 2d 534, 108 S. Ct. 1319 (1988) (describing use of certain public lands by Native American tribes as "traditional"); Hobbie v. Unemployment Appeals Commission of Florida, 480 U.S. 136, 137, 94 L. Ed. 2d 190, 107 S. Ct. 1046 (1987) (describing observance of a Saturday Sabbath by a Seventh Day Adventist as being based on "sincerely held religious convictions" and as involving "fidelity to religious belief"); Thomas v. Review Board, Indiana Employment Security Division, 450 U.S. 707, 715, 67 L. Ed. 2d 624, 101 S. Ct. 1425 (1981) (describing the plaintiff's termination of employment for refusal to work on an armaments production line as having been done "for religious reasons" and further stating that "one can . . . imagine an asserted claim so bizarre, so clearly nonreligious in motivation, as not to be entitled to protection under the Free Exercise Clause; but that is not the case here . . . "); Sherbert, 374 U.S. at 404, 410 (describing observance of a Saturday Sabbath by a Seventh Day Adventist as "following the precepts of her religion" and as involving "religious convictions respecting the day of rest"). The Court provides no analysis for these differing characterizations. Nor does the particular characterization appear to carry any consequence. Thus, the Court in Hobbie and Frazee struck down unemployment regulations that conflicted with practices motivated by the appellants' "sincerely held religious beliefs," while the Court in Goldman upheld restrictions that conflicted with a practice "required by . . . religious beliefs."

494 U.S. at 887. Similarly, in her concurrence Justice O'Connor stated, "I agree with the Court . . . [that] 'it is not within the judicial ken to question the centrality of particular beliefs or practices to a faith.'" Id. at 906 (quoting Hernandez v. Commissioner, 490 U.S. 680, 699, 104 L. Ed. 2d 766, 109 S. Ct. 2136 (1988)). Finally, in his dissent, Justice Blackmun stated, "I agree with Justice O'Connor that courts should refrain from delving into questions whether, as a matter of religious doctrine, a particular practice is 'central' to the religion." 494 U.S. at 919. The Court thus unanimously rejected a centrality inquiry on the basis of judicial competence. See also Thomas, 450 U.S. at 716 ("Courts are not arbiters of scriptural interpretation."); Jones v. Wolf, 443 U.S. 595, 602-06, 61 L. Ed. 2d 775, 99 S. Ct. 3020 (1979); Presbyterian Church v. Mary Elizabeth Blue Hull Memorial Presbyterian Church, 393 U.S. 440, 449-50, 21 L. Ed. 2d 658, 89 S. Ct. 601 (1969). Just as a determination of centrality is beyond the judicial "ken," so would a determination of whether religious practices are compelled by religion necessarily place judges in the untenable position of determining religious doctrine.

III. Whether the Defendants Are Entitled to Qualified Immunity

Defendants' final argument is that summary judgment should be granted because they are entitled to qualified immunity. Plaintiff argues that it would be inappropriate to consider this argument in addressing a motion to reconsider because the defendants did not raise it in their motion for summary judgment. Plaintiff may be correct that a motion to reconsider is not the proper avenue to raise the issue of immunity for the first time. Nonetheless, defendants have not waived this defense. The defense of qualified immunity is available at any stage in the litigation. For instance, in Alvarado v. Picur, 859 F.2d 448 (7th Cir. 1988), the Seventh Circuit held that the defendant had not waived the immunity defense even though it was raised on the eve of trial. Moreover, the Supreme Court has "repeatedly . . . stressed the importance of resolving immunity questions at the earliest possible stage in litigation." Hunter v. Bryant, 502 U.S. 224, 112 S. Ct. 534, 536, 116 L. Ed. 2d 589 (1991) (listing cases). Because this is the first opportunity the court has had to address the immunity question, I find it appropriate to address it here.

In the court's June 30 memorandum, I dismissed the plaintiff's claim for injunctive relief as moot. As a result of the conclusion above that the defendants are immune from damages, there is no longer any relief available for plaintiff on this claim. The claim therefore should be dismissed. However, in the plaintiff's pretrial memorandum, plaintiff's counsel indicates that he plans to seek reinstatement of the claim for injunctive relief because Mr. Muslim once again finds himself incarcerated in the Chester County Prison, where the restrictions on hats that give rise to this case remain in place. Plaintiff is therefore given two weeks from the date of this order to file a motion for leave to reinstate the injunctive relief claim. If such a motion is not filed -- or if the motion is denied -- summary judgment will be granted to defendants.

ORDER

Upon consideration of defendants' motion for reconsideration, it is hereby ORDERED that:

1. The motion is GRANTED in that the court finds that defendants are entitled to qualified immunity. The plaintiff's claim for damages is therefore DISMISSED.

2. Plaintiff is given two weeks from the date of this order to file a motion for leave to reinstate the previously dismissed claim for injunctive relief. If no such motion is filed, the case will be dismissed in its entirety.

Pollak, J.

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